ceed with it" from the precise point to which it had already progressed, exactly as if the case had been commenced and proceeded with to the same point in that court. This view is supported by the court of appeals of New York in the case of Wegman v. Childs, 41 N. Y. 159. and in that case other decisions are cited and followed. Certainly rights established by a final jUdgment ought not to be held to have heen forfeited or sacrificed by this statute, if by any reasonable or fair construction ofits terms a different conclusion can be arrived at. The construction I have given to the act dqes lead to a different and more satisfactQry conclusion.' The construction contended for by counsel for the respondent does not, for the word "pending" is used in the clause descriptive of the class of cases and proceedings to be transferred to the state courts, and bears exactly the same"relation to those cases that it does to the cases and proceedings which,are transferable to the national courts, and it is not possible to exclude this court from taking jurisdiction of a case on the ground that because it had proceeded to judgment in a territorial court it then ceased to be a pending case, and yet hold that by virtue of this act of congress the courts of this state could take cognizance of the same case. I hold, therefore, that the case has been lawfully transferred to this court, and also that, being so transferred this court, of necessity, must adopt as its own all the proceedings and orders of its predecessor in the case, including the judgment, and must exercise the same powers which that court would now have if it had continued to be, including the power to punish a violation of the injunction. The motion to discharge the rule is therefore denied.
which,as to that case, was successor to the territorial court, should pro-
THE WALLA WALLA.
(District Court, D. Washington, N. D. August 26,1890.)
SUCCESSOR OF TERRITORI.L COURTS-,ADMIRALTY-ApPEAL.
An admiralty cause having been to the supreme court of Washington Territorr. but not docketed in that court prior to the admission of the state into the Union, must necessarily be tl'l1,nsferred from the the territorial district court, which rendereil. the decree, to this court, which is as to all admiralty causes successor to the territorial court of original jurisdiction. Failure of the appellant to cause the transoript to be sent up and have the cause docketed in the circuit court before the beginning of the term is not such laches as to be deelDed an abandonment of thjl appeal, there having been heretofore no opportunity for trial of the cause in the circuit court, and no actual delay.
The court will deny a motion for leave to issue an execution made after an appeal taken,and a considerable delay in causing a transcript of the record to be sent up, lind based on an assumption that the appeal has been abandoned, when it appears that a hearing of the cause in the appellate court has been actUally delayed by laches'on;the part of theappellan1i. I. · (SIlU4buB lYU th.6 Oourt.)
EXECUTION-IssUE AFTIIR ApPEAJ,-LA,ClIES.
.In' Admiralty. Richard Osborn, for libelant. J. C.Haines, for c.laimant.
HAMILTON V. THE WALLA WALLA.
HANFORD, J. In this case, a decree in favor of the libelant was dered by the district court of the third judicial district of the territory of Washington, from which an appeal was taken to the supreme coutt of the territory, and everything necessary to perfect said appeal was done before the retirement of the territorial courts, consequent upon the organization of the state government, except to certify and transmit the record to the supreme court, and docket the case therein. As I understand the different statutory provisions affecting the subject, this court is the successor of the territorial cOllrt of original jurisdiction as to all admiralty causes pending at. the time the change from a territorial to a state government took place. And all such cases are to be understood as having been, by operation of law, transferred from such court of original jurisdiction to this court. And this court, in taking cognizance of them, regards them as if everything qone by its predecessor had done by this court, and its duty is to do whatever may be properly done to finish them. In other words, this court takes such cases in the condition in which the territorial district court left them, and proceeds to do whatever remains to be done to afford the parties on either side whatever reliefthey may be entitled to have, and to end the litigation; therefore the case came properly into this court, and in due course it should have given effect to the appeal taken by certifying and transmitting the record to the circuit court of this district, which is'as to such cases the successor of the territorial supreme court, and the only court to which the cause can be taken on appeal. The record sh'lUld have been sent up, and the cause docketed in the circuit court before the first day of its first term for the northern division of the district, and I consider it the fault of the proctor for the appellant, rather than of the clerk, that this was not done, for it is not claimed that the clerk has ever refused ot been unwilling to make the transcript or docket the cause, and as ter of fact he has only delayed for want I)f a request to proceed. This neglect, however, has not in fact delayed the hearing or decision of the case, for there has been no judge in attendance except the district judge; who, as judge of the territorial court, gave the decision appealed from; and who is therefore, within the spirit and reason of section 614 of the Revised Statutes, debarred from again .deciding the case. Such being the facts and condition of the case, the libelant now moves for leave to issue an execution upon the decree, claiming that by laches the appeal has been abandoned. I hold, however, that no actual intent to aban don the appeal is shown, and that until an opportnnity to have a review' of the case has been suffered to pass, abandonment of the appeal cannot be legally implied from laches. The first term of the circuit court' has not yet ended; and whether the appellant shall be denied a trial in the appellate court asa penalty for failure to have the case docketed before the beginning of the tern1 is a question for that court to decide. No ruleg of practice have as yet been adopted by either the circuit court or this: court, and the interruption of the proceedings in the case, incident to the change of government, has created confusion and uncertainty in the practice,. . In view of all the facts and circumstances proper to be con':
vol. 44. ,;
tile h!lrdship to the libelant of having to wait so long for the. final decision' of his case, I could not but regard a ruling, which would in effect cut off the right of appeal, as tyrannical, and r therefore deny the motion.
ASSOCIATION HORt.OGERE SmSSE GENEVE et al.
(Ootrcuit Oourt, S. D, New York. October 18,1890.)
WRITS-SERVICE BY PUBLICATION.
. ,be llierved by pUblication under the judiciary act of 1875,
Ina suit to determine the title to Q patent-right, a non-resident defendant cannot S 8, providing for such service in suits "to enforce any legal or equitable lien upon or claim to, or to remove any incumbrance or liEin or cloud upon, the title to real or personal property within the district."
'On a motion for service by publication on a foreign corporationl the court cannot determine the question whether it is engaged in business in the dlstrict, and therefote b!lund by service had on its director. .
,.'InEquity. . ,l}:rff8,f(n ;&: Knauth, for complainant. John H.Kitchen, for LACOMBE, Circuit Judge. This is an application for an order directing service of process upon the defendant, a Swiss corporation, by pubThe petition states that the suit is brought to remove a cloud u,pon"tQ.e title .to certain letters patent" which it is claimed are the property ofthe complainant corporation, or rather of its receiver, and which II original letters patentdhe sub,iect-matter involved in this suit,are in possession of [such receiver,]" This statement is not technically accurate. What the suit is concerned with is the title to the patent itself, -to, thepatent-rightj and the mere custody of the letters evidencing the fact such patent-right was originally granted to a particular inventor is immaterial. The petitioner claims that he is entitled to the relief prayed for, under section 8 of the judiciary act of 1875, which provides for such service llpon non-resjdent defendants when the suit is commenced "to enforce any legal or equitable lien upon or claim to, or to remove any incumcloud upon, the .title to real or personal property within the district where such suit is brought." The various cases which were cited by the complainant's counsel interpreting this section are concerned either with,Eeal property, or with such tangible personal property as was susceptible of reduction to actual possession. I cannot satisfy myself that the section covers (or was intended to cover) such incorporeal and intangible ,property as a patent-right, possession. of which must of necessjty, actual, and wh.ich cannot be seized or sold under an